Lawsuit spills into commission meeting

By Paul Fallon
Times West Virginian

FAIRMONT October 02, 2008 12:10 am

— The discussion of a lawsuit between Marion County Commission President Alan Parks and Burley “Butch” Tennant Jr., his opponent in the November general election, spilled over into Wednesday’s regular commission meeting.
Parks recently filed a petition with the West Virginia Supreme Court asking that Tennant’s name be removed from the county’s Nov. 4 ballot.
Parks stated in his petition that Tennant should not be allowed to run for the seat because at the time of the primary election he was not a resident of the Middletown magisterial district, the open seat on the commission.
Belinda Biafore, chair of the Marion County Democratic Committee, attended the meeting to present commissioners with a Freedom of Information Act request.
Biafore asked the county to provide her with copies of original invoices totaling nearly $3,000 from Rose Padden & Petty for work the law firm completed earlier this year to investigate Tennant’s residency on behalf of the commission.
The law firm is also representing Parks in his personal petition against Tennant, Marion County Clerk Janice Cosco and the two ballot commissions, JoAnn Williams and David DeMoss.
Among other items, Biafore also asked for the “lengthy and detailed” letter to the commissioners, which cites legal opinions and case law concerning the residency issue.
Commissioner Wayne Stutler informed Biafore that she must request the information from Cosco, in her capacity of the county clerk as keeper of county records.
However, Cosco said that she did not have the letter sent to the commissioners, and that it should be on file in the commission’s office. She added that she did have copies of the invoices, but they were not original copies and some information had been blacked out.
“We’ll be seeking legal advice now,” Biafore said after the meeting, pointing out that a lawsuit may be forthcoming.
Cosco said that the copies of the invoices in her office should not have been altered and should be original. She added that in the 27 years she has served as county clerk, she has never received a redacted copy of records from the commission.
Cosco also addressed the issue pertaining to the wording on the primary election ballot. Tennant ran against six other candidates during May’s primary election. On the ballot, Tennant was listed as living in the Palatine district. All other candidates were listed as living in the Middletown district.
Cosco said she interprets the West Virginia state code to say a candidate can run for a seat in a magisterial district as long as they live in that district before the general election. However, she points out that since Tennant lived in the Palatine district at the time he registered to run, that district was listed on the ballot.
“It would have been dishonest if we put Middletown on the ballot,” Cosco said.
The two earlier Supreme Court cases that seem to contradict each other on the residency issue are Burkhart v. Sine (1997) and Johnson v. Sandy (2002).
In the Burkhart case, the court ruled a candidate must meet residential requirements on the day he is elected, which is the general election day. In the Johnson case, the court ruled that a candidate must be a resident of the appropriate district on the day he is nominated by the party, which is the primary election day.
Tennant, a Democrat, owned a home in the Palatine District through July of this year. His home was purchased by developers of the Volcano Island Resort and Waterpark, and this summer he purchased a home on Sylvan Avenue within the Middletown District, where he now resides.
The makeup of the commission requires one commissioner from each of the county’s three magisterial districts — Palatine, Middletown and West Augusta. The open seat represents the Middletown District, which is currently represented by Parks.
E-mail Paul Fallon at pfallon@timeswv.com.